January 10th, 2025

Sam Altman, Lawyers and the Money Shot Fail

Sam Altman is the OpenAI chief honcho, which released ChatGPT. And Ann Atlman is his younger sister. She has sued him for sexually abusing her starting from the age of three. Sam has denied the charge.

But this post isn’t really about that. In fact, I didn’t bother to even read the complaint.

This post instead is about Ann Altman’s lawyer, Ryan Mahoney. What did Mahoney do to raise my ire to write of him? Nothing wrong. He did something that made me applaud.

If people write about lawyers doing crappy things, shouldn’t we take notice when the lawyering is done right?

Some years ago I had screamed into the blogosphere about lawyers that put ginormous monetary claims in their lawsuits here in New York. It’s not allowed anymore, but some do it anyway. (See: Death by Red Bull, An $85M Lawsuit, And The Money Shot; and The $30M Dog Bite)

The lawyers do it because they don’t know the law (unlikely) or because they care more about seeing their names in the paper, to generate more traffic to their firms.

But each time it happens, a couple things occur: First, the headlines lead their stories with the money quotes, so the story is now about the money, not the safety failure that brought on the injury. Second, the headlines are things that jurors remember, making jury selection more difficult than it already is as many people have their minds poisoned by outlier claims that make the headlines.

Now back to the Sam Altman case and Ryan Mahoney. In this New York Times piece I see the following:

Ms. Altman’s lawsuit requests a jury trial and damages in excess of $75,000. Ms. Altman’s lawyer, Ryan Mahoney, said in an interview with The Times that the amount was the minimum required for a federal suit of this kind. He said that if the suit proceeded to a jury trial, he and his client would seek “an amount that fully compensates my client for what happened to her.”

Mahoney was offered the money shot. “Tell us how much you want!,” asked the press. He declined. So the story is now about the issue, and not the money. The money bit is buried in the 10th paragraph of a 12-paragraph article.

I have no idea if the case has merit or not, but for my purposes that doesn’t matter today. I just see a lawyer handling the press the way it is supposed to be done.

January 31st, 2018

#EricsLaw Introduced In NY Assembly – Updated!

OK, the bill isn’t actually called #EricsLaw, that’s just the name I wish to call it since it stems from a post I made last August concerning one of my pet peeves: The ad damnum clause. That’s the pretentious Latin way we lawyer-types refer to the damages demand in a lawsuit.

Since this blog is actually cited in the bill’s memo [pat self on back], I figured I ought to tell you about it.

The underlying story had Fox newsman Eric Bolling getting shit-canned by Fox News over sexual harassment allegations. He thereafter started a $50M defamation suit.

I dug in to write, not about the aforementioned shit-canning, but about the fact that you can’t put that ad damnum clause in a personal injury suit, and defamation qualifies as personal injury.

Yeah, I was writing about boring procedural things again. But you know what? Putting demands in complaints encourages lawyers to claim large dollar amounts out of fear that, if we make a demand too low, it may limit our clients’ recovery later. Oh, Mr. Plaintiff client needed five surgeries? Who knew way back then!?

And those big numbers lead to the very predictable consequence of lawyers (and our clients) looking fabulously stupid as the demands are always in the headlines. And the news always wants the money shot. Which thereby poisons the jury pool for every case.

It’s also despised by defendants, as they see it as an unfair trashing of Dr. Defendant, now being the subject of the headline grabbing numbers. The law was amended to abolish the practice in 2003.

Hallelujah!! No more stupid, telephone number demands made by lawyers to cover worst case scenarios or to, [spit, spit] get their names in the Daily News. Doctors were thrilled also. Win-win!!!

But I found in writing the Bolling piece that, lo and behold, because the case was not started in the traditional manner with a summons and complaint but, rather, with the rarely used and widely disfavored summons with notice that he was actually required to put in a demand.

Oops. It seems that when the Legislature amended CPLR 3017(c) in 2003 to prohibit the money demand, it forgot to list the relatively obscure summons with notice as one of the pleadings. This is how it now reads:

(c) Personal injury or wrongful death actions. In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And the section that deals with a summons with notice (CPLR 305) requires it for all actions except medical malpractice:

(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

Are you still with me? Please say you’re still with me. This is going to be exciting I tell you!

So it seems that my little blog posting on this inadvertent loophole was noticed up in Albany, because lo and behold — can I use that phrase twice in one posting? — there’s now a bill from Assemblyman Daniel J. O’Donnell to fix CPLR 3017 by adding the summons with notice (A. 8852) to the list of other pleadings where you can’t put in a specific demand for damages.

How do I know it was my little blog that did it? Well, it’s cited in the bill’s memo:

Where does that leave us? It leaves us with the need to also add a small fix to the CPLR 305 provision currently requiring the demand in a summons with notice, so that there isn’t any conflict of law with an amended 3017.

And, since we’re on the subject, it also leaves us with getting rid of the need to put a demand in a Notice of Claim for New York City (GML 50-e), which must be filed within 90 days of an incident. As if anyone actually knows how extensive the damages will be at the stage (Judge Sues City for One Million Dollars!), which is why it’s so stupid to have. It is already prohibited in every place in New York State except the City of New York (any “city with a population of one million or more”).

[Updated: This post appeared on January 31st. On February 9th, the proposed legislation was updated to include the two changes I suggested above to CPLR 305 and GML 50-e.]

I think that these are the last existing vestiges of the demand for damages in this state. The Legislature dumped them from the Court of Claims (cases against the state) back in 2007, which I celebrated at the time.

And I’m going to call this #EricsLaw (Underline! Italics! Bold! #Hashtag!) — and it ain’t for Eric Bolling — since it seems to have come from my little blog posting and there doesn’t seem to be anyone else around to name it after. And, by gosh, every law needs to be named for someone.

I would name it the far more interesting Turk’s Demand, but hey, I’m sticking with convention here.

One day someone can chisel on my tombstone — with or without the hashtag, I’ll be in no condition to complain — that I helped tweak the CPLR for everyone’s benefit, if it actually winds its way through both houses of the Legislature and gets signed.

Such an accomplishment. I’m all verklempt.

And here’s the kicker: The Bolling suit went, to absolutely no one’s surprise, absolutely nowhere. There are no other documents in the court file after the summons with notice was filed last August, not even an affidavit of service. No complaint or demand for one. No appearance by any defense counsel. Nothing. Zero. Nada. Zippo.

Bolling apparently filed for no other reason than to grab headlines and intimidate others who might come forward. This kind of legal filing, designed to intimidate by imposing the fear of litigation, even if wholly unfounded in law, is the reason that New York should pass anti-SLAPP legislation.

The anti-SLAPP bill previously passed the Assembly but remains oddly stalled in the Senate. Who is it that’s in favor of frivolous threats that shut down speech, and has stalled the bill in the Senate? Inquiring minds want to know.

Now that would be a terrific piece of reform. I’ve been frivolously sued twice over this blog, so feel free to stick my name on that one also. With or without the hashtag.

August 11th, 2017

About Eric Bolling’s $50 Million Defamation Suit – And the Ad Damnum Clause Loophole

Eric Bolling

News junkies know that yet another Fox News anchor has been shit-canned over allegations of sexual harassment, this time it being anchor Eric Bolling. Fox has “suspended” him for allegedly sending lewd texts and photos to colleagues.

But I’m not here to deal in the actual details, but rather, the $50 million suit he has filed against his accusers in New York state court, and the procedural quirk that allows him to make that claim despite New York’s apparent prohibition on doing it.

You see, Bolling’s attorney didn’t file a Summons with a Complaint, but rather, a Summons with Notice. To us New York lawyers, this is a very significant procedural issue. The brief document is here: EricBollingSummonsWithNotice

A Complaint has details in a defamation case, setting forth actual words that were written or uttered that are claimed to be false and injurious. This Summons with Notice crap, does not. It’s substance merely states:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed.

While it is legal to start a suit this way, it is most certainly not the way lawyers practice. He now has just 20 days to file the Complaint or risk dismissal.

But time wasn’t a barrier for any of this — he could have waited to draft a Complaint if it had merit — so why start suit in such a crappy fashion?

My theory:

There will be no real lawsuit to follow. This was rushed out the door to intimidate others from stepping forward and grab press. Put a big whopper of a number in the filing — in this case $50M — and people who may claim to have been harassed may simply say I don’t need this crap.

There isn’t any other reason I can think of. If it is brought to the attention of a judge, s/he is likely to simply strike it. But the damage has already been done.

But wait! What about that mammoth $50M number? Regular readers know that I have railed against those who put ad damnum clauses into their pleadings. New York (thankfully) outlawed this practice for personal injury cases back in 2003 (and defamation constitutes personal injury). It used to apply only to medical malpractice cases, but in 2003 was changed to all personal injury cases. CPLR 3017(c) states:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

New York’s Grand Poobah of Procedure, the late Prof. David Siegel, thought a monetary sanction should be levied. In his authoritative treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 3017.”

But Bolling’s lawyer may have discovered a loophole to grab that press. Because CPLR 3017(c) doesn’t list Summons with Notice as one of the documents that prohibits the ad damnum clause. Here it is again with emphasis added:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And yet, the Summons with Notice (CPLR 305) requires a prayer for relief (“shall contain”) except in medical malpractice cases:

(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

So it appears that when CPLR 3017(c) was amended in 2003 to forbid the placing of a specific demand for relief in a Complaint, the Legislature forgot that CPLR 305 requires it in a Summons with Notice.

We lawyer types have a word for that discrepancy: Loophole. I don’t know if Bolling’s lawyers knew it existed when they drafted this document, but there it is anyway. But when I sat down to write about the odd way this suit started, I certainly didn’t realize it. While I came to critique the way this suit was started that’s what I found instead.

A loophole.

And one that the Legislature should fix in the next legislative session by amending both CPLR 305(b) to add all personal injury suits to the actions that prohibit the demands for relief, and adding Summons with Notice to the list of documents that prohibit it in 3017(c).

July 1st, 2015

Donald Trump Files Frivolous $500M Defamation Claim (Updated)

Donald Trump

I’ll try to do this post without the usual comments about Donald Trump’s desperate need for attention over the years, or his combover, bluster, birther issues, and paying people to attend his presidential announcement.

Or the shear delight of late night comics. Or comments about every village having its idiot, and since NYC is the biggest village…..

Crap. Couldn’t do it.

Anyway, as many folks know, Trump made a number of exceptionally nasty and derogatory comments about Mexicans during that announcement, calling them as a group rapists and drug dealers:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

If you don’t think that is bad, try substituting Jews, blacks, gays, etc.

Univision, a Spanish language station that carries Trump’s Miss USA and Miss Universe contests, dumped Trump over the comments. Then NBC fired him from a TV show called Celebrity Apprentice.

Trump sued Univision yesterday for breach of contact and defamation. I haven’t see the contract, and have no opinion on it, but I do have an opinion on the defamation.

Having myself been the subject of two frivolous defamation suits for my comments on this blog, it probably doesn’t come as a surprise to regular readers that I have opinions on the subject. (See Rakofsky and Katz)

As best I can glean from this, the defamation claim surrounds the publication of a picture of Trump next to alleged mass murderer Dylann Roof. The publication took place on Instagram by Univision’s President, Alberto Ciurana, and has since been taken down. You’ll find the reference to it in paragraph 29 of the Complaint.Trump Defamation Case

Is the photo nasty? You betcha. I publish it here so that you know what this part of the suit is about. And so you also understand why it represents constitutionally protected free speech under the First Amendment.

Because, ugly as the picture is, it does not represent fact, but opinion. And the First Amendment clearly protects opinion. You can’t bring a lawsuit (successfully) for hurt feelings because people were mean to you on the Internet.

Since Trump brings this case in Manhattan, New York’s First Department, the court will likely quote this type of language, that was used in the dismissal of the Katz case against me:

“‘[s]ince falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false…a libel action cannot be maintained unless it is premised on published assertions of fact,’ rather than on assertions of opinion.” Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dept 2011) (quoting Brian v. Richardson, 87

In 1986 New York’s Court of Appeals said in Steinhilber v. Alphonse that expressions of opinion, as opposed to assertions of fact, are privileged and, no matter how offensive, cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.

Trump doesn’t even come close to asserting a false fact. That cause of action is destined to be dismissed.

By filing a $500M defamation claim (paragraph 61), Trump knows he will get headlines. And he is. Despite the fact that the suit is empty.

Trump, of course, freely admits that he is outrageous on purpose to garner press. In his book The Art of the Deal, he writes:

One thing I’ve learned about the press is that they’re always hungry for a good story, and the more sensational the better. It’s in the nature of the job, and I understand that. The point is that if you are a little different, or a little outrageous, or if you do things that are bold or controversial, the press is going to write about you. I’ve always done things a little differently.

But that doesn’t mean a judge should tolerate the abuse of the courts for that purpose. The judicial culture of New York judges is to avoid sanctions for clearly frivolous claims, but that needs to change. We have provisions for sanctions for both a frivolous suit and for frivolous conduct. They should be used.

This is not the first time Trump will lose a defamation case. Trump was dumped back in 2011 when book author Timothy O’Brien questioned his claims of wealth, writing that Trump was worth $150M-$250M, and not the $7 billion he boasted about. Trump had testified, before he was dumped, that his net worth depends in part on his “own feelings.”

Two more quick points: New York prohibits making an ad damnum clause in a personal injury case, and defamation falls into that category. It was outlawed in 2003. Yet Trump does it anyway, for $500M.

I’ve written about this before. There are only two reasons to put the monetary claim in the complaint: The lawyer was ignorant or there was a deliberate attempt to garner headlines.

The usual response by judges is simply to strike the demand, but by then the damage has been done and the headlines written.

A far better avenue for the court is levy sanctions for having done it. And given Trump’s nature as a vexatious litigant, and his admitted conduct of being outrageous to get press, sanctions would be wholly appropriate.

This isn’t just my opinion, but that of the late guru on New York Practice, David Siegel. In his treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 301(c).”

Finally, the Legislature should finish its work with regard to the anti-SLAPP legislation that has passed the Assembly but stalled in the Senate. Trump is clearly trying to stifle the public discussion of his outrageous conduct, and this should not be permitted.

Update: At a presidential debate on Feb. 25th Trump said the matter had been “settled.” A motion to dismiss had been pending and I assume he didn’t want the wrath of a judge that might give him a YUGE sanction. I’d be stunned if Trump received even one nickel.

The actual statement by Trump:

TRUMP: I’m just telling you, I’m doing very well with Hispanics. And by the way, I settled my suit, as you know, with Univision. It was settled. We’re good friends now. It was all settled up.

January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14): CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.